Wednesday, 30 November 2011

Osborne’s Autumn Statement

For the second time this year (the first occasion being the Budget Statement in late March) the Chancellor of the Exchequer has stolen Uncle Eric’s thunder by announcing important planning reforms.

I don’t propose to list everything in the statement, which has already been summarised elsewhere, but there are certain elements of the package which presage significant changes in planning law and practice.

The costs regime in planning appeals is to be amended in the summer of next year in order to ensure that there is a more effective mechanism for applicants to obtain an award of costs in a case where a statutory consultee has acted unreasonably. At present, it is the LPA which is likely to cop the costs order in this sort of case, so it is unlikely to make a lot of difference from the appellant’s point of view. What would have been far more useful would have been a change to the costs regime so that it would be the normal practice in future for appeal costs to follow the event, whilst leaving a measure of discretion to the inspector where the justice of the case requires some other outcome – in other words the same practice which applies in the civil courts. But once again the opportunity has been missed.

Some tweaking of the new major infrastructure planning process can be expected by the summer of next year, particularly in the pre-application phase, apparently in response to comments from applicants.

The government may have to steer a delicate course in their avowed intent to ensure that compliance with the Habitats and Wild Birds Directives does not lead to unnecessary costs and delays to development, without provoking legal challenges alleging failure to follow the directive or to transpose it correctly into our domestic law. This will involve a review of these two Directives as currently implemented in England, to be completed by next Spring, in an effort to find a way of preventing delays to developments where compliance is particularly complex or has large impacts. This is what Sir Humphrey might describe as a ‘brave’ initiative. Members of the planning bar will no doubt be on stand-by for the judicial review applications which could ensue.

Incidentally, the review of the two European directives has been entrusted to DEFRA, rather than to De-CLoG. If I were Uncle Eric, I would be getting worried about the way his department seems to keep getting bypassed. Various planning-related tasks are repeatedly being handed out to the Treasury, the Business Department, DEFRA, Uncle Tom Cobbleigh and all, but seemingly not to Uncle Eric’s merry crew. Is someone trying to tell them something?

Further planning reforms which have been flagged up include a review of planning appeal procedures, with the intention of making the process faster and more transparent, improving consistency and increasing the certainty of decision timescales. These proposals are expected to be implemented in the summer of next year. I have drawn attention on a number of occasions to the government’s long-held ambition to emasculate the appeals system, but does this latest announcement indicate a change of tack, and an acceptance that the appeals system must be improved rather than hobbled, as the government originally intended? If there are dark forces within De-CLoG who still harbour ambitions to make it more difficult to appeal against adverse planning decisions, one hopes that they will now finally be banished by the over-riding need to ensure that the planning system (including the appeals system) responds to the need to enable development wherever possible.

As we already knew, pre-April 2010 section 106 agreements will be up for re-negotiation. All this needs is a ministerial order varying the period prior to which an application under s.106A need not currently be entertained by a local planning authority. There does not seem to be much for the government to consult over on this subject.

Another possibility which is being canvassed is a variation of the General Permitted Development Order to enable existing agricultural buildings to be used for other business purposes - such as offices, leisure and retail space. This may meet with some resistance from the likes of the CPRE, but it will no doubt be widely welcomed by farmers and rural businesses.

Buried in one of the appendices is a statement that the government will support new development, which could include modern garden cities, urban and village extensions. The Government intends to invite proposals from developers and local authorities for new developments which have clear local support. Local support for this type of development seems rather improbable, and if support is not forthcoming the government might be tempted to go ahead with these developments anyway. This could be a future battleground for CPRE, the National Trust and their friends at the Daily Torygraph.

Finally, the government intends to introduce new permitted development rights for non-domestic ‘micro-generation’ of electricity. They hope this will incentivise the take-up of small scale renewable and low carbon energy technologies. It could also lead to some dissatisfaction among neighbours of these ‘micro-generation’ projects.

It looks as though 2012 could see some significant changes on the planning front, when the proposals listed in the Chancellor’s Autumn Statement are added to final publication of the NPPF and, of course, the gradual implementation of the Localism Act, not to mention certain other changes which the government has been canvassing.

Interesting times.


Monday, 28 November 2011

Where does the government go now?

The government has still got to do some hard thinking about the planning system. There is an, as yet, unresolved contradiction between the attitude to the planning system which the Tories displayed both before they came to power and in the first ten months after the election and, on the other hand, the government’s apparently damascene conversion (dating from this year’s budget statement at the end of March) to the benefits of built development in contributing to much-needed economic growth.

Scrapping regional strategies (and with it the removal of any form of regional planning) clearly serves the anti-development agenda with which the government came to power. The Localism Act, with its concept of neighbourhood planning and various other forms of ‘localism’, was also directed to the same end. The original intention behind scrapping detailed ministerial policy guidance and replacing it with a single very thin document (the NPPF) was similarly to remove what were seen as over-prescriptive centrally promulgated policies, so as to leave local planning authorities free to resist development in their own back yards. An intention to emasculate the appeals system was another item on the same agenda.

The first and most controversial change has been the alleged transformation of the draft NPPF from what originally promised to be a fairly innocuous document, which would have left local planning authorities with what they imagined was to be enhanced freedom of action in turning down planning applications, to an engine for unrestricted development. For the reasons which I have explained previously, I do not believe that this was the primary intention in the drafting of the NPPF, nor do I believe it will necessarily have this effect. Mere omission of some of the detailed guidance in existing PPGs and PPSs does not necessarily betoken a change of approach. On the other hand, the opportunity was taken to throw into the draft document some encouraging noises about development, in order to bring the document into line with the government’s newfound need to promote economic growth (or, at the very least, to fend off another recession). The result is a somewhat inept piece of drafting which pleases no-one.

The economic outlook is still very threatening, and the government cannot afford to lose any opportunity to shore up a faltering economy. I suspect that this will ultimately prove to be the stronger of the two competing forces which are currently pulling the government in opposite directions over town planning. Much as the National Trust, the CPRE and the Daily Torygraph may hate it, it may well prove to be the pro-development agenda which will win the day.

The Federation of Master Builders suggested recently that it will be necessary for the government to reintroduce housing targets, whether on a regional or on a county-by-county basis, but this would be so embarrassing politically that it is beyond the bounds of practical politics. For the same reason, the government cannot be seen to abandon the NPPF in face of the chorus of dissent which greeted the publication of the consultation draft. So far as the NPPF is concerned, what is likely to emerge is a messy compromise, which reinstates some of the material omitted from the consultation draft but was to be found in previous ministerial policy guidance, and perhaps some toning down of the apparently aggressive pro-development thrust of the document.

Economic necessity will nevertheless drive the government to find other means by which development can effectively be promoted. This requires only a few simple mechanisms to be put in place, none of which will need legislation. First, in publishing a toned down final version of the NPPF next March (or April), the government should accompany it with a robustly worded letter or circular stressing the importance it places on economic growth and on the planning system as a means of delivering that growth. This statement should reiterate that the default answer to any planning application is ‘Yes’, and should confirm that ministers will apply this approach in determining appeals. (There is nothing revolutionary about this; as my colleague David Brock has pointed out, it has been written onto ministerial planning policy ever since the 1920s!) Secondly, any lingering thoughts of emasculating the appeals system should be abandoned; on the contrary it needs to be strengthened, and extra inspectors may well have to be recruited to cope with an increased workload.

In the absence of regional housing targets or similar centrally imposed policies, planning by appeal is the only means by which the reluctance of local planning authorities to allow sufficient development in their areas can be overcome. This approach might arguably be an unsatisfactory way in which to deliver much-needed development, but the government has left themselves little option, having abandoned a more structured policy-based approach.

In the meantime, what of the government’s much-vaunted housing strategy? This rag-bag of miscellaneous ideas, hastily cobbled together last week in something of a panic, can hardly be dignified with the term ‘strategy’. It has already become clear that many of the proposals will have little practical impact on housebuilding, and will hardly counter the action taken by the government soon after it came to power, which (to take just one example) has had the effect of cutting affordable housing starts to a pitifully low figure.

The government clearly has a mountain to climb if it seriously intends to get housebuilding moving. This makes it all the more likely that they will continue to rely on a strongly pro-development policy stance when publishing the NPPF next year, even if the document itself is slightly expurgated by comparison with the consultation draft . By itself, of course, a pro-development policy stance will not be enough to free up the logjam; fiscal and financial incentives will have to be considerably beefed up in order to oil the wheels of the housing market. Ministers are now getting so desperate about the economy (which has been depressed largely through their own post-election policies) that they appear to be quite ready to adopt desperate measures, even if it does involve yet more U-turns away from the over-hasty doctrinaire measures taken shortly after the government came to power, such as cutting the funding for social housing.

One views the developing situation not so much with amusement as bemusement.


Still busy, busy, busy

As you may have gathered from the time which has elapsed between posts on this blog recently, I have become increasingly busy in the past couple of weeks, and this inevitably makes it difficult to find the time to write items for the blog. There is certainly no shortage of material at the moment, and it is just a question of getting it written up. I will do my best to keep up with the blog, so as not to disappoint the growing number of readers visiting the blog.


Wednesday, 16 November 2011

Localism Act 2011 - Commencement

Following Royal Assent on 15 November, the Localism Act 2011 has now reached the statute book. Section 240 of the Act makes the following provisions as to commencement [planning provisions printed in bold italics] : -

The following provisions in the Act came into force on 15 November: - section 23, paragraphs 57 and 58 of Schedule 4, and section 26 so far as it relates to those paragraphs, section 37, Chapter 2 of Part 5 so far as it confers power on the Secretary of State to make regulations, section 86, Chapter 3 of Part 5 so far as it confers power on the Secretary of State or the Welsh Ministers to make regulations or orders, sections 103 and 104, section 109(1)(b) and (2) to (6), paragraphs 1, 13(1), 18 and 19 of Schedule 8 and section 109(7) so far as they relate to those provisions of that Schedule, section 110, sections 116 and 121 and Schedules 9 to 12 so far as those sections or Schedules confer power on the Secretary of State to make regulations or publish documents setting standards, sections 117 to 120, the provisions inserted by section 122 so far as they require or authorise the making of provision in a development order, section 144, sections 168 to 175, section 233 and Schedule 24 so far as they confer power on the Treasury to make regulations or orders, sections 234, 235, 236, 238, 239, 240 and 241, and Part 15 of Schedule 25, and section 237 so far as it relates to that Part.

Section 114 came into force on 16 November.

The following provisions of the Act will come into force on 15 January 2012 : - section 25, Chapter 8 of Part 1 so far as it relates to England, section 44, section 45, section 47, section 71, section 80, sections 111 to 113, section 143, section 177, section 183 and Schedule 18, Chapter 2 of Part 8, except section 197(3)(e) and (f) and (5), and Parts 6, 8, 14, 17 and 29 of Schedule 25, and section 237 so far as it relates to those Parts.

The remainder of the Act will come into force on such dates as are specified in the usual plethora of commencement orders. There is no guarantee that every section of the Act will actually be brought into force, and as planning professionals are very well aware, there are still sections in the 1991, 2004 and 2008 Acts which have not yet been brought into force and probably never will be.

Planning, which was originally in Part 5 of the Bill now forms Part 6 of the Act, comprising sections 109 to 144. Chapter 1 (sections 109 to 113) deals with the abolition of regional strategies and other matters relating to plan-making. Chapter 2 (sections 114 and 115) contains amendments to the CIL regime. Neighbourhood planning is dealt with in Chapter 3 (sections 116 to 121). Chapter 4 comprises a single section (122) introducing a requirement for consultation before applying for planning permission. The new enforcement provisions are set out in Chapter 5 (sections 123 to 127). Chapter 6 (sections 128 to 142) abolishes the Infrastructure Planning Commission and makes revised provision for the processing of applications for major infrastructure projects. Finally, Chapter 7 (sections 143 and 144) includes the notorious provision in section 143 introducing ‘local finance considerations’ as a material consideration in the determination of planning applications.

More detailed provisions on some of these topics are to be found in the following schedules: - Schedule 8 — Regional strategies: consequential amendments; Schedule 9 — Neighbourhood planning (Part 1 — Neighbourhood development orders; Part 2 — Neighbourhood development plans); Schedule 10 — Process for making of neighbourhood development orders; Schedule 11 — Neighbourhood planning: community right to build orders; Schedule 12 — Neighbourhood planning: consequential amendments; Schedule 13 — Infrastructure Planning Commission: transfer of functions to Secretary of State (Part 1 — Amendments of the Planning Act 2008; Part 2 — Other amendments).

All very turgid; but we are going to have to get our heads round this in the months to come.


Tuesday, 15 November 2011

Poundbury - a curate’s egg?

I was in Dorset last week and took the opportunity while I was there to visit Poundbury. Within a day of arriving in the area, I learnt that Poundbury is known locally as “Charlieville” or “Noddytown” and that its founding father, HRH The Prince of Wales, is colloquially referred to in that area as “Charlie-boy”. It seems that the denizens of Dorchester are a more earthy lot than the ‘refaned’ residents of Tetbury and district, who would never dream of referring to the heir to the throne in such a disrespectful way.

A conversation with a local architect suggested that the social mix at Poundbury is not so wide as it might be ideally, notwithstanding the inclusion of 20% social housing and some additional shared ownership properties. I was told that Poundbury residents are predominantly professional people or are retired, so the age profile is also untypical of the population as a whole.

On approaching Poundbury, I was immediately struck by its wind-swept hilltop site. It reminded me of the post-war council estates outside some of our larger towns and cities, so often located on a bleak, windy site, which inevitably creates an uninviting and even alienating environment even before a single brick is laid. This particularly applies at Poundbury to the larger, more recent area of continuing development on the highest ground. Thomas Sharp commented many years ago on the closed vistas which are such a notable feature of traditional English townscape, but in the later phases of development at Poundbury the opposite is all too often the case, with open views out of the town which entirely destroy any sense of enclosure.

The ambience of the earlier part of the development (for example around Pummery Square) is more intimate, and attempts a rather smaller scale vernacular pastiche than the polite architecture or even quasi-monumental style of some of the buildings in the later phases of development. Even so, there is a certain quirkiness in the design of individual buildings which is reminiscent of the style of Clough Williams-Ellis. In fact, my wife commented on the same slightly nightmarish quality that is evident at Portmeirion. Might the residents of Poundbury feel sometimes that they are extras in a re-make of “The Prisoner”?

Whether Poundbury works as a mixed use development is open to question. The range of local shops is very limited, although a Waitrose store is due to open later this month. The only local industry that I noticed is the Dorset Cereals factory (presumably a B1 use). I gather that working from home is encouraged, and some offices are now being built, but Poundbury remains overwhelmingly a residential development with only limited provision for other uses.

Despite its original aspirations, and the various claims made for it, I don’t think Poundbury succeeds in breaking new ground in terms of land use planning or urban design. Ebenezer Howard was far more successful with his developments at Welwyn Garden City and Letchworth. Poundbury, by contrast, has a number of distinct drawbacks, which I have referred to above, and on balance I think it is a failed experiment – not a disaster, certainly, but a disappointment. Whatever HRH may have hoped, I rather doubt whether Poundbury has any lessons to teach architects or town planners; nor does it offer a model for future urban development.


Tuesday, 1 November 2011

Localism Bill – Lords Third Reading

The House of Lords seems to have become addicted to debating planning recently. In addition to dealing with the committee stage and report stage of the Localism Bill last month, they had an opposition-sponsored debate on planning on 13 October (to which I referred briefly in this blog on the 23rd). This was followed by a second debate on planning in the Grand Committee on the 27th, this time on a formal government motion to consider the NPPF, and finally they had the third reading debate on the Localism Bill on 31 October.

The debate on Third Reading ranged over various parts of the Bill but, so far as the planning provisions are concerned, dealt only with the definition of sustainable development and transitional arrangements. In both cases, the government stuck to its guns. The definition of sustainable development, if we get one at all, will be in the NPPF, not in the Act. The government (i.e. De-CLoG) is still in full head-scratching mode over transitional provisions. This really relates to the status of previously adopted local plans and core strategies in light of the NPPF. My colleague, David Brock, has expressed his doubts about the bland assurances given by Baroness Hanham in the debate in the Grand Committee (see his recent blog entry, which can be accessed by clicking on the link on the side-bar on the left of this page), and I fully share his doubts, as do various members of the House of Lords and many other people concerned with the practical effect of the legislation and of the forthcoming NPPF.

The Bill now goes back to the Commons for the consideration of Lords amendments – a mere formality, as no opposition amendments were in practice made to the Bill, and it should then receive royal assent later this month. But that is when the fun will begin, and lawyers like me will start crawling all over it, trying to work out exactly how it is to be interpreted and how the various provisions will apply in practice. There will undoubtedly be difficulties of interpretation, and some aspects of the new Act will undoubtedly give rise to significant legal disputes, not least those provisions relating to enforcement and, in particular, concealed development, which is set to become a major legal battleground in the years to come.